Author Archives: mhoveyplo

How Do I Revoke My Will?

It some times happens that circumstances change in a person’s life and the person desires to revoke a prior will.  Perhaps the individual divorced or got remarried and the original will no longer matches his or her intentions for the distribution of his or her estate.  This raises the question of how does one effectively revoke a prior will?

The answer is contained in 20 Pa.C.S. § 2505.  Pennsylvania law provides several methods for revoking a will.  The first, and best, is to create a new will.  This method is strengthened by including language in the new will explicitly revoking the prior will.

Another method would be to execute a revocation.  A revocation would be a written document explicitly revoking the prior will without creating a new will, thereby creating a “will vacuum” of sorts.  The revocation, however, must conform with the prior will, meaning that it must be “executed and proved in the manner required of wills.”

The third way to revoke a will would be to physically destroy the document.  The statute provides that “by being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revocation,” a will may be revoked.  This method, however, typically requires witnesses to verify the testator’s intent to revoke the will and is, therefore, not the most efficient method of revocation.

If you want to revoke a prior will, whether or not you are interested in creating a new will, please contact me, Matthew T. Hovey, Esquire.  My firm offers free initial consultations during which I can review your estate planning needs.  Please do not hesitate to contact me with any questions or concerns.

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My Parent Scribbled Some Instructions at the Bottom of the Will… Are the Instructions Valid and Enforceable?

Here is a common scenario: Your parents went to an attorney years and years ago and executed basic wills, leaving their respective estates to each other, then to their three children.  A few years ago your father passed away and the entire estate passed to your mother.  Following your father’s death, relations between your mother and your brother were strained.  One day your mother stumbles upon her will and wants to make some changes, but rather than executing a new will, your mother hand writes at the bottom of the will, “I want each grandchild to receive $2,000.  I want my sister, Jane, to have our mother’s wedding band.  I do not want my son, John, to inherit any of my estate.”  Your mother passes and you are the executor of the estate.  Are your parent’s final instructions valid and enforceable and your brother is disinherited?

Pursuant to 20 Pa.C.S. § 2502(1), the answer is no.  The final instructions are not valid and enforceable.  Section 2502(1) provides that “The presence of any writing after the signature to a will, whether written before or after its execution, shall no invalidate that which precedes the signature.”  As a result, because the main section of the will provides for a distribution to all three children, the language at the bottom of the will, after the signature, that disinherits your brother is not enforceable.  The same is likely true for the specific gifts to the grandchildren and of the wedding band.

In order to effectuate these changes, a new will or a codicil (addendum) must be executed.  If you or a loved one is interested in making changes to a will, please contact me, Matthew T. Hovey, Esquire.  My firm offers free initial consultations during which we can review your estate planning needs and any prior wills to determine how best to secure your intentions.  Please feel free to contact me with any questions or concerns.

 

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What is a “Durable” Power of Attorney?

A power of attorney is an essential element of most estate planning.  It authorizes another person, typically a spouse or child, to perform legal actions on your behalf.  Examples of the type of authority in a normal power of attorney executed for estate purposes include making gifts, accessing safety deposit boxes, investing money, and filing taxes on your behalf.

For estate planning purposes, however, a simple power of attorney is insufficient.  It is normally recommended that a Durable Power of Attorney be executed.  This begs the question: What makes the power of attorney “durable?”  And what does “durable” even mean?

The answer is contained in 20 Pa.C.S. § 5604.  A durable power of attorney is one that grants legal authority to another on your behalf which will withstand any incapacity or disability that you may experience.  In other words, your designated agent may continue to legally act on your behalf even if you are unable to perform the same act or make the same decision.

The benefit of a durable power of attorney is predictability and continuity in the event of your incapacity or disability.  For example, lets say that you executed a durable power of attorney designating your child as your agent.  Now, in the event that you suffer an instantly debilitating event, like a stroke, your child can step-in and ensure the continued and timely payments on obligations like mortgages and credit cards without penalty.  Additionally, if the powers are included in the Durable Power of Attorney, your child will be authorized to make medical decisions consistent with your wishes.

If you or a loved one needs a Durable Power of Attorney or wants to update a Durable Power of Attorney, please contact me, Matthew T. Hovey, Esquire.  My firm offers free initial consultations, during which we can review your situation and prior documentation in order to evaluate your estate planning needs.  Please do not hesitate to contact me with any questions or concerns.

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Consumer Protection: Beware of New Credit Card Surcharges – Contact Us Immediately If Improperly Charged

By Matthew T. Hovey, Esquire

Buyers beware!  As of January 27, 2013, retailers in Pennsylvania can now charge customers a surcharge of 4% of all purchases paid for with most credit cards, including Visa and Mastercard.  This change is the result of a legal settlement in anti-trust case between retailers and credit card companies which now permits retailers to “pass along” their merchant fees to the consumer.

The surcharges are prohibited in ten states, but they are permitted here in Pennsylvania.  That said, to comply with Pennsylvania strict Consumer Protection Statute, retailers must clearly and explicitly notify customers if they intend to charge them the credit card surcharge.  Failure to do so will expose the retailers to significant penalties pursuant to the Consumer Protection Statute.

If you were charged the 4% surcharge without sufficient notification prior to your purchase, please (1) keep your receipt and/or credit card statement; and (2) call us!  A violation of Pennsylvania’s Consumer Protection Statute carries the potential penalty of triple damages and the retailer may be required to pay reasonable attorney fees for the victim.**  Our main office can be reached at 888-313-0416.

Sources: Tina Burgess, “Credit Card Surcharge: New 4% Credit Card Fee For Customers in 2013,” http://www.examiner.com/article/credit-card-surcharge-new-4-credit-card-fee-for-customers-january-2013; Atossa Araxia Abrahamian, “Retailers May Add Surcharge in Credit Card Transactions,” http://news.yahoo.com/retailers-may-add-surcharge-credit-card-transactions-223139316–sector.html

**We cannot and do not promise or guarantee any award in any amount.  The penalty for a violation of the Consumer Protection Statute is completely within the discretion of the court.  Each case is unique and results may vary depending on the potential plaintiff, potential defendant, and the unique facts of each case.

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Series on Adoptions: What Are the Estate Reasons for an Adult Adoption?

By Matthew T. Hovey, Esquire

In honor of National Adoption Month (November), I launched last month a ten part series on Adoptions in Pennsylvania.  The tenth, and final, piece in this series focuses on the question: what are the estate reasons for an adult adoption?  If you are interested in an adoption, I encourage you to please return and read my articles on adoptions.

Interestingly, while rare, an adoption can be used in estate planning.  The reason is that an adult adoption, if appropriate, can simplify the passing of an individual’s estate upon his or her death.  For example, lets say Russell grew up without a father and over the years became very close to Mr. Fredricksen, whose wife predeceased him and they had no children.  During this time, Mr. Fredricksen becomes like a father to Russell and vice versa.  Unfortunately, Mr. Fredericksen has a greedy brother who feels that he is entitled to his brother’s wealth.  Nevertheless, Mr. Fredericksen wants his wealth to go to Russell, who is like a son to him.  If Mr. Fredericksen leaves his estate to Russell in a will, then the potential exists that his brother could contest the will.  His brother could claim Mr. Fredericksen was incompetent or unduly influenced by Russell into giving him his fortune.  This could tie up the estate in litigation for years.  An alternative, however, would be for Mr. Fredericksen to adopt Russell, making him his legal son.  Now, upon his death, the entire estate will pass automatically to Russell and without any likely interference from the brother.

This is an example of how an adoption can be a legal tool outside of its stereotypical usage.  An adoption can be used in other contexts, occasionally by same-sex couples in states that prohibit gay marriage.  As a result, any quality estate planning process should, even briefly, consider the benefits of an adoption.

If you, a family member, friend, or coworker are considering an adoption, please call our office and setup a free initial consultation.

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Series on Adoptions: Can We Change the Child’s Name?

By Matthew T. Hovey, Esquire

In honor of National Adoption Month (November), I launched last month a ten part series on Adoptions in Pennsylvania.  The ninth piece in this series focuses on the question: can we change the child’s name?  If you are interested in an adoption, I encourage you to please return and read my articles on adoptions.

The answer is yes!  Pursuant to 23 Pa.C.S. § 2904, “If requested by the petitioners, the decree may provide that the adoptee shall assume the name of the adopting parent or parents and any given first or middle names that may be chosen.”  Therefore, the adoptive parents are not simply limited to changing the surname of the child, the adoptive parents will have the right to completely name the child.

To achieve this result, the adoptive parents will include the new name in their Petition for Adoption.  The attorney will then be required to include the name change on the proposed Adoption Decree, as well as other relevant paperwork.  Once the court issues the adoption, the name will be changed and the new name will appear on the child’s new birth certificate.

If you, a family member, friend, or coworker are considering an adoption, please call our office and setup a free initial consultation.

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Series on Adoptions: Can the Parties to an Adoption Agree to Allow Contact Between the Child and the Natural Family?

By Matthew T. Hovey, Esquire

In honor of National Adoption Month (November), I launched last month a ten part series on Adoptions in Pennsylvania.  The eighth piece in this series focuses on the question: can the parties agree to allow contact between the child and the natural family?  If you are interested in an adoption, I encourage you to please return and read my articles on adoptions.

Yes!  But only if all parties are in agreement.  23 Pa.C.S. § 2731, et al. provides for “an option for adoptive parents and birth relatives to enter into a voluntary agreement for ongoing communications or contact that (1) is in the best interest of the child; (2) recognizes the parties’ interests and desires for ongoing communication or contact; (3) is appropriate given the role of the parties to the child’s life; and (4) is subject to approval by the courts.”

To gain court approval, the agreement must be entered into knowingly and voluntarily (demonstrated by a signed affidavit from each party) and be in the best interest of the child.  To determine the best interest of the child, § 2735(b)(2) provides the following factors for the court to consider: (a) the length of time that the child has been under actual care, custody, and control of a person other than a birth parent and the circumstances relating thereto (think natural grandparent who cared for the child); (b) the interaction and interrelationship of the child with birth relatives and other persons who routinely interact with the birth relatives; (c) the adjustment to the child’s home, school, and community; (d) willingness and ability of the birth relative to respect and appreciate the bond between the child and prospective adoptive parent; (e) willingness and ability of the prospective adoptive parent to respect and appreciate the bond between the child and the birth relative; and (f) any other relevant factor.  This agreement cannot be entered into with the child’s consent if the child is at least 12 years old.

If you, a family member, friend, or coworker are considering an adoption, please call our office and setup a free initial consultation.

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